The Due Process Right Affirmed

Two sentences from Supreme Court Justice Sandra Day O'Connor's written opinion Monday regarding the rights of enemy combatants deserve to be carved in stone:

``A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.''

``We must preserve our commitment at home to the principles for which we fight abroad.''

With those elegant words and thoughts, a majority on the high court told the Bush administration that it does not have absolute authority over those it chooses to designate as enemy combatants. The executive branch may not hold such a combatant indefinitely without any ability to challenge his detention before a ``neutral decision maker.''

For more than two years, hundreds of accused enemy combatants have been denied access to counsel and communication with family members. They have not been informed of any charges against them.

In the wake of the terrorist attacks on Sept. 11, 2001, the Bush administration and Congress sought to rewrite the rules on due process. They claimed that terrorism is a nontraditional threat that requires extraordinary executive powers to contain. The president was given the authority to designate both foreign nationals and American citizens as enemy combatants and to hold them in detention without recourse to the courts.

Most of the detainees have been held at a U.S. military base at Guantanamo Bay, Cuba. A handful of enemy combatants are in mainland U.S. jails. Some of the detainees sued to be able to challenge their status in court.

In two separate cases, the Supreme Court said the executive branch has been acting contrary to constitutional requirements. It ruled that the president may designate people as enemy combatants but doesn't have the power to toss a detainee in jail and throw away the key.

In one case, the court ruled that U.S. citizens seized by U.S. forces overseas cannot be held without access to American courts. In another case, the majority said that noncitizens captured during military operations must be given their day in court. In a telling statement in one of the rulings, the majority said that ``indefinite detention for the purpose of interrogation is not authorized.''

The court did not rule on the merits of a third case, involving Jose Padilla, an American citizen who was arrested in Chicago on suspicion of plotting with al-Qaida to detonate a radioactive device. Mr. Padilla has not been criminally charged. The U.S. 2nd Circuit Court of Appeals in New York found his detention unconstitutional, but the high court said Mr. Padilla must refile his lawsuit seeking access to the courts in South Carolina, where he is being held in a military prison.

The court's decisions will not result in the immediate release of the detainees. Indeed, the detainees may stand trial at some point. But first they will have the right to confer with lawyers and will be able to challenge their detention in court.

``The very core of liberty has been freedom from indefinite imprisonment at the will of the executive,'' wrote Justice Antonin Scalia.